CG v Secretary of State for Work and Pension

I allow the Appellant’s appeal to the Upper Tribunal. The First-tier Tribunal’s (‘FtT’) decision dated 3 October 2024 involves an error on a point of law and I therefore set aside the decision.

The case now needs to be reheard by a new FtT. I cannot predict the outcome of the re-hearing. The fact that this appeal to the Upper Tribunal has succeeded on a point of law is no guarantee that the appeal before the new FtT will succeed on the facts. The new FtT may reach the same, or a different, decision to that of the previous tribunal.

The Appellant was born on 28 November 1960. She suffers from (amongst other conditions) asthma, heart murmurs and eczema.

On 4 October 2023, the Appellant made a claim for Personal Independence Payment (‘PIP’). By a decision dated 7 December 2023 the Appellant was assessed by the Respondent as scoring nil points and as such was awarded neither the Mobility component nor the Daily Living component of PIP. The decision was reconsidered by the Respondent on 13 February 2024 but not revised.

The Appellant appealed to the FtT. By a Decision Notice dated 3 October 2024, the FtT confirmed the existing scores and so dismissed the appeal.

The Appellant then applied to the Upper Tribunal for permission to appeal. In a detailed and comprehensive order dated 4 June 2025, Upper Tribunal Judge Butler granted permission to appeal on the grounds that the FtT arguably erred in:

Upper Tribunal Judge Butler did not formally refuse permission on other grounds of appeal raised by the Appellant. She did, however, record in her order that those grounds would only need to be considered if the grounds of appeal upon which permission to appeal was formally granted were not considered determinative of the appeal to the Upper Tribunal.

Mr Ryan Binks, who now acts for the Respondent in these proceedings, supports the appeal to the Upper Tribunal. He invites the Upper Tribunal to set aside the FtT’s determination and to remit the matter back to the FtT for a fresh hearing. Mr Binks also confirmed that the Respondent agrees to the Upper Tribunal giving a decision without reasons.

In his reply to the Respondent’s submissions (Form 25), Mr Iqbal indicated that the Appellant does not want an oral hearing and does not agree to the Upper Tribunal giving a decision without reasons.

Not least given the support of the Secretary of State’s representative for the appeal, I am persuaded that the FtT erred in law for the reasons set out below.

The FtT is under a general duty to make adequate findings on relevant issues (Benmax v Austin Motor Co Ltd[1955] AC 370 at 373). This requires the FtT to assess and evaluate the competing evidence. The FtT is also under a general duty to give adequate reasons to explain how relevant findings were made and its conclusions. In Re B (Appeal: Lack of Reasons) [2003] FLR 1035 Thorpe LJ stated (at paragraph 11): “I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he arrived at his findings, and then his conclusion?”. Similarly, at paragraph 2 of the decision in CCS/2152/04, the Tribunal noted that: “It is well established that even if a decision itself may be sound, it amounts to an error in law making it necessary for the decision to be set aside if sufficient findings and reasons are not spelt out to give the parties a reasonable understanding of the basis on which it has been reached. This is a necessary safeguard since otherwise it is not possible to know whether the tribunal may have misdirected itself or omitted to take account of some material consideration in the case”.

The medical consultation report (PA4) dated 28 November 2023 records that the Appellant reported that she “Lives in a house with 2 floors and it has 3 bedrooms. Has a perching stool in the kitchen. Has a handrail around her toilet. Has a shower over the bath with handrails. All the above aids were bought by the Claimant”. More specifically, in respect of Daily Living activity 4 (Washing and Bathing) she reported that she “Has a shower over the bath with handrails and holds onto them as she gets out of breath bending down when lifting her legs over the bath or when washing her legs” and in respect of Daily Living activity 5 (Managing Toilet Needs) she reported that she “Has a handrail around her toilet to get on and off the toilet due to feeling tired and breathless”.

In respect of Daily Living activity 1 (Preparing Food), the FtT recorded at paragraph 15 of the Statement of Reasons (‘SoR’) that the Appellant had said that she “was cooking herself meals at the time of the decision but now she just wants to sit down”. The FtT then concluded that “[The Appellant] is able to prepare a meal for one person… [The Appellant] told the Tribunal that at the date of the decision she was able to and was cooking this has subsequently changed as her breathing has worsened” (SoR paragraph 24) and so awarded nil points for this activity.

It is not clear whether the FtT applied its mind to and considered that the Appellant had stated in the medical assessment that she had (and so presumably used) a perching stool in the kitchen and/or what, if anything, it made of that evidence. The FtT noted that the Appellant had said that at the time of the Respondent's decision she was cooking meals but now “just wants to sit down”. The FtT did not explain whether it understood that to mean that the Appellant was no longer able to cook and now just wanted to sit down or that she was now only able to cook whilst sitting down. Even if the latter, the FtT did not refer to the Appellant having reported at the medical assessment (and, therefore, prior to the Respondent’s decision) that she had a perching stool in the kitchen, explain what it understood that to mean and/or make any findings as to whether the Appellant needed a perching stool to be able to cook a meal at the relevant time and, if so, whether that amounted to her needing an ‘aid’ to be able to prepare and cook a simple meal for the purposes of descriptor 1b. I am satisfied that the FtT’s failures as set out above amount to errors of law.

In respect of Daily Living activity 4 (Washing and Bathing), the FtT recorded at paragraph 19 of the SoR that the Appellant had said that “since the decision her son has put rails in the bathroom this was a preventative measure, one has now broken off so she leans onto the sink when getting out of the shower…”. The FtT then concluded that “[The Appellant] at the time of decision was able to wash and bathe she told the tribunal that this has subsequently become a problem. Her son has fitted precautionary rails, though one has fallen off, but this postdates the decision” and so awarded nil points for this activity.

The FtT appears to have proceeded on the basis and found that the handrails above the Appellant’s bath were fitted after the Respondent’s decision. In doing so it appears to have ignored or otherwise failed to note and consider that the Appellant had stated at the medical assessment (prior to the Respondent’s decision) that she had purchased and fitted handrails over the bath and that she held on to the handrails as she got out of breath bending down, when lifting her legs over the bath and when washing her legs. I am satisfied that this amounts to a failure to take relevant matters into account and so amounts to an error of law.

Insofar as the FtT was aware of and considered what the Appellant had stated in the medical assessment, the FtT failed to reconcile or otherwise address the apparent conflict in the evidence and/or to explain why it preferred what the Appellant may have said in oral evidence over what she had said at the medical assessment and/or why, notwithstanding that there was clear reference to the presence and use of handrails prior to the Respondent’s decision, did it find that the handrails were fitted after the Respondent’s decision. Further, it is not clear why the FtT found that handrails were fitted as a ‘precautionary measure’ in circumstances where the Appellant had stated in the medical assessment that that she held on to the handrails as she got out of breath bending down, when lifting her legs over the bath and when washing her legs. The FtT appears to have drawn a distinction between ‘needing’ handrails and ‘choosing’ to have them as a precautionary measure without explaining the evidential basis for drawing such a distinction, making any or any adequate findings of fact and/or explaining the legal basis and effect of such a distinction. Still further, the FtT failed to make any findings as to whether handrails amounted to an ‘aid’ for the purposes of descriptor 4b. In short, the FtT failed to make necessary findings and/or failed to give adequate reasons for its findings and conclusion and so erred in law.

In respect of Daily Living activity 5 (Managing Toilet Needs), the FtT concluded at paragraph 27 of the SoR that “[the Appellant] told the tribunal that she could manage her toileting needs specifically saying “have asthma not a bad back” when asked whether she could get on and off the toilet” and so awarded nil points for this activity.

The FtT appears to have ignored or otherwise failed to note and consider what the Appellant had stated in the medical assessment that she used a handrail fitted around her toilet when getting on and off the toilet due to feeling tired and breathless. I am satisfied that this amounts to a failure to take relevant matters into account and so amounts to an error of law.

Insofar as the FtT was aware of and considered what the Appellant had stated in the medical assessment, the FtT failed to reconcile or otherwise address the apparent conflict in the evidence and/or to explain why it preferred what the Appellant may have said in oral evidence over what she had said at the medical assessment. For example, bearing in mind what the Appellant had said in the medical assessment, it is not clear if the Appellant’s oral evidence that she was able to get on and off the toilet was intended to mean that she could do so without using handrails or that she could only do so using handrails but without the need for any person to assist her. The FtT’s failure to reconcile or otherwise address the apparent conflict in the evidence and make adequate findings of fact, meant that it failed to properly and adequately consider whether the Appellant needed handrails to be able to use the toilet at the relevant time and, if so, whether that amounted to her needing an ’aid’ to be able to manager toilet needs for the purposes of descriptor 5b. I am satisfied that the FtT’s failures as set out above amount to errors of law.

In respect of Mobility activity 2 (Moving Around), the FtT noted that “At the time of decision [the Appellant] confirmed to the tribunal that the information in consultation was correct that she could walk for 10 minutes at a slow place and then stop and rest she now says its only 2/3 minutes, she says her breathlessness has got worse hence the hospital referral” (SoR paragraph 15). The FtT then concluded that “[The Appellant] at the time of the decision was able to move around over 200 metres, she spends her days at work in a large hospital kitchen she has to move around to supervise the kitchen staff she is able to do this for 5 minutes before stopping to sit. [The Appellant] agreed that at the time of the decision she was able to walk for 10 minutes before she needed to stop.” (SoR paragraph 29) and so awarded nil points.

The FtT appears to have ignored or otherwise failed to note and consider (i) that the Appellant had stated in her PIP2 form that she was only able to walk between 20 and 50 metres; and (ii) that the Appellant’s GP records record on 12 December 2023 that the Appellant was barely manging her housework and avoiding walking outside due to shortness of breath and that she used her car to travel short distances. I am satisfied that this amounts to a failure to take relevant matters into account and so amounts to an error of law.

Insofar as the FtT was aware of and considered that that the Appellant had stated in her PIP2 form that she was only able to walk between 20 and 50 metres and/or what was recorded in the relevant entry in the GP records, the FtT failed to reconcile or otherwise address the apparent conflict in the evidence and/or to explain why it preferred what the Appellant may have said in oral evidence over what she had said at the medical assessment and/or what was recorded in the GP records. As Upper Tribunal Judge Butler noted, a person’s recollection of time is not necessarily better than their recollection of distance and the evidence in the GP records was not obviously consistent with an assessment that the Appellant could walk for more than 200 metres. Further, the FtT failed to make any proper findings and/or give any adequate reasons as to how it came to the conclusion that the Appellant was able to walk more than 200 meters. Whilst there was some evidence that the Appellant could walk for 10 minutes, the FtT appears not to have considered, made any adequate findings of fact and/or explained the speed at which the Appellant could walk. Without a proper consideration of speed, the basis upon which the FtT concluded that the Appellant could walk over 200 metres is unclear. The FtT also failed to properly consider, make any adequate findings of fact and/or explain whether the Appellant was able to walk over 200 metres repeatedly for the purposes of regulation 4(2A) of the Social Security (Personal Independence Payment) Regulations 2013.I am satisfied that the FtT’s failures as set out above amount to errors of law.

Ground 3 was not advanced by the Appellant in her grounds of appeal. Upper Tribunal Judge nevertheless granted permission on Ground 3 using her inquisitorial jurisdiction. In respect of Ground 3, Upper Tribunal Judge Butler noted as follows:

“10.

Using my inquisitorial jurisdiction, I also grant permission to appeal on the ground that the FTT has not addressed the activity of taking nutrition. It acknowledged that you raised this as a problem in your PIP2 form. You also mentioned it to the healthcare professional for the PA4 medical report, in terms of choking when drinking due to your asthma (page 16 of appeal bundle). While you did not list taking nutrition in your SSCS1 appeal form, the FTT has not explained why it decided against considering it in determining your appeal. This may indicate that the FTT failed to exercise its inquisitorial jurisdiction adequately or failed to provide adequate reasoning for not considering this stated difficulty.”

In her PIP2 form the Appellant had stated that she experienced difficulties eating and drinking. She stated: “I am ok eating but sometimes I have a cough with my asthma and I have food stuck in my throat due to coughing. Drinking sometimes when I am thirsty I drink a lot of water and I have to drink slowly because when I drink fast I get out of breath”.

The medical consultation report records that the Appellant reported that she “Drinks slow as gets out of breath drinking. Reports no choking episodes that needed medical attention”.

Although, the Appellant did not list Daily Living Activity 2 (Taking Nutrition) in her SSCS1 appeal form (and so the FtT did not consider it), I am satisfied that in light of the above evidence, the FtT ought, in the exercise of its inquisitorial jurisdiction, to have at least considered and explored Daily Living Activity 2 (Taking Nutrition) or explained and given reasons for not doing so. The FtT’s failure to do so amounts to an error of law.

I am satisfied that the errors of law identified above are material. Had the FtT determined the above matters differently and in favour of the Appellant, she may have been entitled to an award of PIP. In such a case, the outcome of the appeal would have been different.

As this is enough to allow and so dispose of the appeal to the Upper Tribunal, I need not and do not express any view on the other grounds of appeal and matters raised by the Appellant.

Accordingly, I allow the appeal, set aside the FtT’s decision and remit the original appeal for re-hearing before a new FtT. As facts need to be found, it is not appropriate for me to re-make the decision on paper.

There will need to be a fresh hearing of the appeal before a new FtT. Although I am setting aside the FtT’s decision dated 3 October 2024, I should make it clear that I am making no finding, nor indeed expressing any view, on whether the Appellant is entitled to PIP (and, if so, which component(s) and at what rate(s) and for what period). That is a matter for the new FtT. The new FtT must review all the relevant evidence and make its own findings of fact accordingly.

In doing so, however, the new FtT will have to focus on the Appellant’s circumstances as they were as at 7 December 2023, and not the position as at the date of the new FtT hearing. This is because the new FtT must have regard to the rule that a tribunal “shall not take into account any circumstances not obtaining at the time when the decision appealed against was made” (section 12(8)(b) of the Social Security Act 1998).

I note that Mr Iqbal has informed the Upper Tribunal that the Appellant was more recently assessed as scoring 12 Mobility points for Mobility activity 2 (Moving Around) and 6 Daily Living points and so has been awarded PIP at the enhanced rate from 18 February 2025. This evidence relates, however, to the period more than 12 months after the Respondent’s decision dated 7 December 2023 and so may indicate a change (deterioration) in the Appellant’s circumstances that the FTT would not be able to take into account.

I therefore conclude that the decision of the FtT involves a material error of law. I allow the appeal and set aside the FtT’s decision dated 3 October 2024 (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)). The case must be remitted for re-hearing by a new FtT subject to the directions above (section 12(2)(b)(i)).